Judge Cote to Apple: Talk to the Hand, or DOJ

By Jeff Gamet

Dec 6th, 2013 2:06 PM EST

Judge Denise Cote has responded to Apple's complaints over what the company sees as overreaching actions on the part of court appointed monitor Michael Bromwich, and she's telling the company to take up its issues with the Department of Justice. Judge Cote assigned Mr. Bromwich to monitor the iPhone and iPad maker as part of the company's sentence for ebook price fixing, and so far he's pushed for interviews with executives that aren't involved in ebook pricing and handed over a bill for services at US$1,100 an hour.

Judge Cote sends Apple's complaints about Michael Bromwich to the DOJ

Along with deflecting complaints about Mr. Bromwich to the Department of Justice -- the agency that brought the antitrust case against Apple -- Judge Cote said that she won't hold any ex parte meetings with Mr. Bromwich, referring to meetings where Apple and its legal team aren't present, and that none have previously taken place.

Apple took issue with Mr. Bromwich's demands to conduct interviews with top ranking Apple officials on his schedule and without legal counsel present. The company also felt that his $1,100 an hour rate, 15 percent service fee, and $1,025 an hour for a lawyer that specializes in antitrust cases, was unacceptable.

Judge Cote didn't address Mr. Bromwich's fees in her response, and instead said Apple needed to take it up with the DOJ. "Objections are to be conveyed in writing to the United States and the Plaintiff States within ten calendar days after the action giving rise to the objection," she said.

If Apple and the DOJ can't reach an agreement, then they can come to her for a conference.

Apple was charged, and ultimately found guilty, with colluding with book publishers to artificially raise the price of ebooks. The publishers all settled out of court to avoid legal expenses and possible fines, but Apple maintained it did nothing wrong and was simply trying to compete in a market dominated by Amazon.

In the end, Judge Cote sided with the DOJ and found Apple guilty of antitrust violations. She then ordered a court appointed monitor to ensure that the company doesn't engage in further antitrust activities. His first oversite action should come in mid January when Apple completes its new antitrust compliance measures, although over the past two weeks he's been busy requesting interviews and confidential documents.

Without any guidance from Judge Cote on payments and other activities Mr. Bromwich is undertaking, it's likely Apple will end up in a conference with her at some point. The DOJ had wanted far more stringent penalties for Apple, and the suggestions the government entity offers up may not be to Apple's liking.

For Apple, the new guidelines will add more time to getting a resolution, although it will include a request to stay the monitoring process during the appeal process. If Apple wins an appeal and overturns Judge Cote's ruling, Mr. Bromwich's duties will end, too, which makes a stay seem like a logical request while the appeal works its way through the legal system.

Apple still maintains it did nothing wrong and looks set to fight the case all the way to the U.S. Supreme Court if necessary. That fight now seems to include targeting Mr. Bromwich, and despite using the DOJ as the middle man, it includes Judge Cote, too.